On this continent in the 1700s there was conceived the new concept that all governmental authority is derived from the people. Throughout the prior history of humankind, the people were granted those rights that the governmental rulers wished to give them. Following are some examples of early writings that portray this new concept.
Declaration of Independence, July 6, 1776
Articles of Confederation, 1777
"...the free inhabitants of each of these states, ... , shall be entitled to all privileges and immunities of free citizens in the several states; ..."
Northwest Ordinance of 1787
This ordinance guaranteed freedom of mode of worship or religious sentiment, benefits of writs of habeas corpus and trial by jury, bail, proportionate representation, judicial proceedings according to the course of common law, and the right to not be deprived of property without just compensation.
Constitution of the United States, 1789
"We, the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The U.S. Constitution defines the power delegated to the U.S. Government. All other power is reserved to the states or retained by the people.
The first 10 amendments to the Constitution, effective in 1791 and known as the Bill of Rights, outline some of the limits of law. The ninth amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In addition, the tenth amendment states that "The powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people."
First Ohio Constitution, 1802
Preamble : "We, the people ...."
Article VIII, Section 28, says that "To guard against the transgression of high powers, which we have delegated, we declare, that all powers not hereby delegated remain with the people." The present Ohio Constitution, 1851, contains similar language in Article I, Section 20.
Thomas Jefferson,1820
"I know of no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education."
Constitutions and other related documents are used in this country to define which powers are delegated to the national government, which are reserved by the states and which are retained by the people. The most important of these documents are listed below, along with some of their effects upon local government.
Articles of Confederation, 1777
This provided the authority for the issuance of an ordinance for the governance of the "western lands" ceded by New York, Virginia, Massachusetts and Connecticut.
The Northwest Ordinance of 1787
This document superseded the previous ordinance and provided the first organizational structure for what eventually became five states in the district northwest of the Ohio River. The ordinance established a Governor, Secretary, Court and Magistrates.
It provided that counties and townships could be established in those areas where Indian rights had expired.
It provided that, when the population of the district reached 5,000, representatives to a general assembly could be elected from counties and townships, one for every 500 free male inhabitants until the number of representatives reached 25. A representative must own 200 acres of land and a voter 50 acres.
The first General Assembly of the district met in Cincinnati in 1799. The second met in Chillicothe in 1801 and 1802.
The ordinance provided for the establishment of five original states, which could be implemented when the population of the state reached 60,000. In 1802, Congress authorized the formation of a state government for Ohio.
The Northwest Ordinance was probably the most important document in shaping territorial boundaries and governmental structures in the Northwest Territory.
Constitution of the United States, 1789
The Constitution provided for the admittance by Congress of new states.
First Ohio Constitution, 1802
This provided for the election of a Governor, General Assembly and officials of the nine existing counties. This election was first held in 1803, and the nine counties were Hamilton, Clermont, Adams, Ross, Fairfield, Washington, Belmont, Jefferson and Trumbull.
The first Ohio Constitution provided for the establishment of new counties, so long as neither the new county nor the residual county was less than four hundred square miles. Each county was to elect a sheriff and coroner biennially; all other local civil officials were to be chosen as established by law.
Present Ohio Constitution, 1851
This Constitution required the General Assembly to adopt general laws governing the organization of all cities.
Amendments to Ohio Constitution, 1912
These major amendments classified municipalities into cities and villages, cities being 5,000 population and over, and villages less than 5,000. It provided for governance of municipalities by general law, by additional optional laws and by charter.
The 1912 amendments gave municipalities home rule: all powers of local self-government and police powers as are not in conflict with general laws.
Amendments to Ohio Constitution, 1933
These amendments gave counties the option to adopt an alternative form of government or a charter.
A legislative code is a system of codifying the laws as passed by the legislature. Ohio has had two systems. The Ohio General Code was in effect until October 1, 1953, at which time the Ohio Revised Code was adopted. The change in codes was not meant to change any laws, but only to correct the language and organize the laws in a more understandable manner.
The Ohio Revised Code changes as new laws are adopted, since a code is nothing more than a compilation of the laws of the state. The authority of the legislature to make laws derives from the Constitution. Legislation "fleshes out" the Constitution. The legislature can adopt laws governing those activities that are proper, according to the Constitution, for governance. All other powers are retained by the people.
The original Constitution of Ohio provided very little guidance for the provision of governance for local political subdivisions. It merely stated that all civil officers not provided for in the Constitution should be chosen annually at such time and place as directed by law. This lack of direction led to the chartering of new municipalities individually by special legislation of the General Assembly. Each city was treated differently, which was cause for abuse and chaos.
The present Constitution, adopted in 1851, called for the General Assembly to adopt general laws governing the organization of all municipalities. Many cities were unhappy with this arrangement, as they wanted legislation that would meet their special needs. The General Assembly responded with a system that resulted in 11 different population classifications, with different laws for each classification. In 1902, the Ohio Supreme Court declared this scheme to be unconstitutional.
The General Assembly next established a new municipal code with only two classifications: cities and villages. Statutory plan municipalities are still governed, to a great extent, by the plan of organization provided for by this legislation.
Pressure from some cities for more flexibility in their organization caused further study, which led to massive constitutional amendments in 1912. These amendments gave municipalities home rule; that is, the power to make laws, or legislate, on matters not prohibited by the Constitution or law. They also provided for alternative forms of organization; either as provided by law or as determined by a municipal charter.
By the authority of the present Constitution, as amended, the General Assembly has adopted three laws for municipal organization. First, under general law, the Mayor, President of Council, Auditor, Treasurer and City Solicitor are all elected, along with the Council. This is called the Mayor-Council form of government.
Second, the optional plan law provides for three different forms of organization: the Commission plan, the City Manager plan and the Federal plan. Any one of these must be approved by vote of the people before it can be implemented.
Third, a municipality may organize under any form it chooses by the adoption of an appropriate charter. The charter is drafted by a Charter Commission, which is elected by the people, and the charter must then be approved by a vote of the people. The charter has been widely used by many municipalities in Ohio.
In 1933, the Constitution was amended to allow a charter and an alternative form of government for counties. Present legislation provides for the general statutory form, in which all major officials are elected and there is no executive head or any legislative authority; the alternative statutory form, with either an elected or appointed executive and a commission with legislative authority; and a charter form, with the charter to be established much the same as in municipalities. Under a charter form of government, a county is organized as a municipal corporation and possesses all powers of home rule. Both the alternative form and the charter form must be approved by the voters.
Summit County approved a charter in 1979. All other counties in Ohio have retained the general statutory form.
All local governments in Ohio can be classified as either home rule or non-home rule, according to the authority given them by the Constitution and legislation in the Ohio Revised Code. All municipalities, and counties that have adopted a charter, are home rule. All other local governments are non-home rule. Non-home rule governments can only provide those services and perform those acts as specifically authorized by law. Home rule governments can perform all functions not specifically prohibited by law. Recent legislation permits townships, by vote of the people, to adopt a limited self-government form of government.
Many laws enacted by the General Assembly are carried out by administrative departments. The Governor appoints the heads of most of these, and they serve at his or her pleasure. These departments, or agencies, adopt rules of procedure for administering state laws. The Ohio Administrative Code consists of a compilation, or codification, of these rules. Public notice shall be given of the time and place of a public hearing on any new rule. The hearing must be held before the rule is adopted and it becomes a part of the Administrative Code.
Many of these rules affect the operation of local government. For instance, the Department of Administrative Services establishes classification systems and provides other personnel services for many local governments. The Department of Development administers many programs, such as the federal Community Development Block Grant, which provides economic development assistance to local governments.
The Ohio Environmental Protection Agency establishes regulations for the operation of waste disposal facilities and public water systems. The Department of Highway Safety inspects school buses, allocates federal highway grants and operates the Ohio State Highway Patrol.
The Department of Industrial Relations develops safety standards for public buildings, enforces the prevailing wage laws and inspects boilers and elevators. The Department of Natural Resources is responsible for soil and water conservation, parks and recreation, and litter prevention and recycling.
The Department of Taxation supervises the collection and distribution of taxes. The Department of Transportation develops design standards for roadways.
These are only a few examples of how state departments, boards, commissions, agencies, bureaus and councils have authority in matters of local government policy. This authority is in the form of rule making power granted by the General Assembly.
The Ohio Constitution establishes a judicial branch of government to settle disputes between individuals, between a person and the government or between agencies of the government. The court system affects local governments by deciding the constitutionality of governmental actions and rules, and by imposing penalties upon people who are convicted of violating laws.
Ohio courts are of two types: constitutional and statutory. The constitutional courts, consisting of the Supreme Court, the Court of Appeals and the Courts of Common Pleas, are created directly by the Constitution. The statutory courts, which include Municipal Courts, County Courts, Mayors' Courts and the Court of Claims, are created by the General Assembly by authority of the Constitution. Constitutional Courts can only be abolished by constitutional amendment. Statutory courts can be established or abolished by the General Assembly.
Courts decide civil cases dealing with such things as debts, contracts and property rights; and criminal cases, either felonies or misdemeanors.
Courts may also be classified as to whether they have original jurisdiction or appellate jurisdiction. Generally, but not always, the Supreme Court and the Courts of Appeals have appellate jurisdiction and all the others have original jurisdiction.
Local governments must, in order to preserve the doctrine of separation of powers, provide a level of funding for the local court systems that is "reasonable and necessary."
Over the years, many disputes have arisen between local elected executive officials and judges as to what constitutes "reasonable and necessary." The resolution of these disputes has a determination on the level of funding that remains for other governmental services.
The major authority of the court system in determining the actions of local government is found in Ohio Revised Code Section 2506.01, which states that "Every final order, adjudication, or decision of any ... division ... of any political subdivision of the state may be reviewed by the common pleas court ...." The test that is applied by the court is to determine whether the order is "unreasonable" or "arbitrary and capricious."
The Attorney General is the chief law enforcement officer for the state. One of the duties of that office is to provide written opinions on questions of law submitted by elected state officials, the General Assembly, the heads of state departments and county prosecutors.
These opinions carry the weight of law, and thus provide a source of authority for the state and its political subdivisions. An Attorney General's opinion is inferior to and can be overruled by a court ruling.